The Queen v. Poon Kar Pun and Another

CACC000370/1985

Headnote

Robbery - whether warning as to the need for corroboration should be given in the case of a suspect witness who is not an accomplice - duty of a judge to discharge a jury after potentially prejudicial but inadmissible evidence has been given at the trial.

BETWEEN

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Coram: Hon. Silke, Barker, JJ.A. & Power, J.

Date of hearing: 8th January 1986

Date of judgment: 8th January 1986

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JUDGMENT

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Barker, J.A.:

1. The applicants in this application POON Kar-pun and POON Kar-lap apply for leave to appeal against their convictions on a charge of robbery in respect of which they were each sentenced to a term of six years' imprisonment. Both had originally also applied for leave to appeal against their sentences but by the time this application came on for hearing POON Kar-lap had already abandoned his application for leave to appeal against sentence and POON Kar-pun abandoned that application by his counsel in front of us this morning.

2. What happened was that a number of silver bars were stolen from a house and were taken away in a car and the case of the prosecution was that it was Dl with others unknown who actually entered the house and committed the robbery and D2 was the driver of the get-away car it not being alleged that he actually went into the premises himself. There was a considerable amount of evidence in this case. D2 admittedly hired the car that was used in the get away and it was during the period of hire that the robbery was in fact committed. D2 chose not to give evidence and that cannot be held against him. But it does mean that there is no explanation as to precisely where he was at the relevant time. The main evidence against the two applicants was of quite a young boy to whom it will be convenient to refer as PW1, his name was CHEUNG Chun-ho and he had been granted immunity from prosecution for this robbery. He gave a considerable body of evidence implicating not only D1 but also D2. The jury were specifically and rightly warned as to the principles to be applied to accomplice evidence and the judge went further on commenting on various aspects of PWl's evidence which, in his view, the jury might think to be unsatisfactory but he told them properly all about corroboration and no complaint can and is made about that direction.

3. The first ground of appeal and may I say at once this appeal has been argued with admirable brevity and succinctness by Mr. McLanachan and just because an argument is brief it loses none of its force. But the first ground of appeal was that the judge erred in failing to direct the jury that it was open to find that PW7 was also an accomplice. If PW7 had in fact been an accomplice that would indeed have been an error because the judge told the jury that if they were to believe the evidence of PW7 his evidence could corroborate that of PW1. But in our judgment it cannot possibly be said that PW7 was another accomplice. It was apparently at one stage thought by the police that PW7 might have been involved in the robbery and indeed he was arrested as a suspect. But there was simply no evidence at the trial to show that he was in any way implicated in the robbery and the sole purpose of his being called by the prosecution was to give evidence of an alleged conversation which he overheard between Dl and D2 which could have amounted to an admission that they had both been involved in the robbery.

4. The defence case at the trial was that PW7 had a grudge to bear against D1 and D2 and that the evidence he gave in Court as to overhearing this conversation was deliberately fabricated against them in order that he could implicate them in offences which they had not committed and thereby he could get his revenge.

5. Mr. McLanachan draws our attention to the latest edition of Phipson on evidence paragraph 32-14 and to the case of D.P.P. v. Kilborne⁽¹⁾ which is well known. In that case Lord Hailsham said that he did not regard these categories - that is the categories of cases in which it would be dangerous to convict without corroboration - as closed and a judge would almost certainly be wise to give a similar warning about the evidence of any witness for the Crown when the witness can reasonably be suggested to have some purpose of his own to serve in giving false evidence. That in fact is exactly what the judge did in this case. He went to great lengths to explain to the jury the contentions of the defence with regard to the evidence of PW7 and he said that if they thought that PW7 was giving false evidence in order to gain his revenge or might be giving false evidence in order to gain his revenge then not merely was his evidence unreliable but he suggested to the jury in his direction that they should ignore it.

6. Mr. McLanachan's complaint about that is "Yes, that is all very well and fine but there was no mention of the actual word 'corroboration' in relation to PW7." That is correct but in the circumstance of this case where such a strong warning was given by the judge to the jury in respect of the evidence of PW7 then we cannot think that the judge was wrong in summing-up to the jury in the way he did.

7. The second ground that Mr. McLanachan relies on, though not, be it added, very strongly, is that there was a reference in the judge's summing-up to a statement which had been given to the police by PW1 which had not been admitted in evidence before the jury. The position was that PW1 had made three statements, the first two of which he said were not true, but the third one he said was true. Not unnaturally, as would appear from the summing-up, Mr. Ramanathan, who then appeared for these applicants, cross-examined PWl strenuously on these statements and the judge in his summing-up said,

"You saw and heard him (that is PW1) being cross-examined at great length in this trial, and you may think that had he given evidence which was materially different from his third statement, Mr. Ramanathan would not have been slow to make this apparent."

That was of course the judge's comment and it is a comment which he was perfectly entitled to make.

The judge went on,

"You may think that the only difference which was suggested (that is suggested in cross-examination) was the matter of the fifth man at Shek Kip Mei Estate. In his statement, in his third statement, he made no mention of this person."

But it seems apparent to us from the way that is put that the judge was able to say that because it was in answer to a suggestion by Mr. Ramanathan in cross-examination. So in those circumstances we cannot see that there is any merit in the second ground of the ground of appeal.

The third ground and it is the one on which Mr. McLanachan most strongly relies is that the judge, the trial judge, decided not to discharge the jury in the exercise of his discretion after evidence given by PW9, a police officer, in cross-examination to the effect that the first appellant had admitted that goods stolen in the robbery had been sold to Wing On Hong Goldsmith Shop. That evidence was admittedly inadmissible and had been excluded in earlier voir dire proceedings when a statement alleged had been made by the first appellant was excluded. And says Mr. McLanachan that evidence which was wrongly allowed to go in before the jury was a clear indication of the first appellant's guilt and could not have failed to influence the jury despite the direction of the judge in his summing-up. What the judge said in his summing-up about this so-called evidence was this, referring to PW9,

"Like many other police officers in this case, he found himself unable to answer the clear and precise questions which Mr. Ramanathan invariably asks. He felt compelled to proffer explanations which he was not asked for and at one stage he said that Dl had told the police that all the bars were sold to the Wing On Hong Goldsmith Shop."

The judge went on,

"What I am now telling you is that you must ignore these comments completely. The police officer had no right to say "what he did say, and he must have known that he had no right to say it. What he said was inadmissible in evidence and you must ignore it."

We were helpfully referred by Mr. McLanachan to the well known case of The Queen v. Weaver⁽²⁾, a decision of the Court of Appeal in England and what Lord Justice Sachs said at page 359 was this,

"It follows as has been repeated time and again that every case depends on its own facts. It also as has been said time and again thus depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what in the light of the circumstances of the case as a whole is the correct course. It is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence the jury must be discharged. This particular case is a quite common type of case. The facts were brought into the cognisance of the court by questions put by counsel for the defence. There was nothing in those particular matters which introduce such a degree of prejudice that it could not be cured by the judge acting wisely in his discretion in the later stages: In the view of this court the matter was one for the discretion of the trial judge. Nothing happened which this court feels entitled the appellants to say was devastating. After the inadvertent admissions of evidence everything was done which should have been done and the appeal was accordingly dismissed."

What Mr. McLanachan says is this. First, that this evidence was not given by inadvertence he says it was given quite deliberately by the police officer. I am not at all sure that from the passage in the judge's summing-up to which I have earlier referred that the matter should be looked at in this way... As my brother Power said in the course of the argument it may well be that "inadvertent" in this case meant no more than evidence wrongly let in. ButrMr. McLanachan goes on to say, "In this case the effect of this evidence was devastating," and he says, "The judge couldn't say to the jury well. I've told you to ignore it'" and go on to say why, because if he did so he would be revealing what it is not permissible to reveal to the jury namely what has occurred at the hearing of the voir dire.

These are powerful arguments but in our view they do not succeed. Juries are frequently trusted to ignore pieces of evidence which have been wrongly let in or to ignore as against one defendant evidence which is inadmissible because it has been said by another defendant in the absence of the first defendant. We are of the view that this was a matter for the discretion of the judge. He could have done one of three things; he could have discharged the jury; he could have ignored this piece of evidence totally in summing-up on the basis that the jury had probably forgotten all about it, or he could do what he did do, which was in the strongest possible terms, namely tell the, jury that this evidence should not have been given and was to be ignored. We cannot see anything wrong with that exercise of his discretion and therefore notwithstanding the capable argument of Mr. McLanachan these applications for leave to appeal against conviction must be refused.

(1)    (1972) 57 Cr. App. Rep. 381

(2)    (1968) 1 Q.B.D. 353

Representation:

Mr. J. McLanachan & CHAN Chi-hung (Poon & Sum) for Dl & D2/Appellants.

Mr. D. S. Kilgour, S.C.C. for Crown/Respondent.